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«October 2009 SCIENTIFIC COORDINATOR Pierre Le Neindre, Senior research scientist, INRA (French National Institute for Agricultural Research) ...»

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Other theoreticians put forward the idea that it is enough to have a “conative life”, that is, one with drives and mental states, to have interests and, therefore, rights. As animals have a conative life, they have a right to health, should not be excessively restricted in their movements. Inflicting suffering, mutilation or deformity on them must be avoided. On the other hand, for the authors of the Universal Declaration of Animal Rights (1978), animal rights stem first and foremost from the animals’ vulnerability.

These schools of thought do not clearly define the species concerned by these rights, probably due to insufficient knowledge regarding the mental and emotional universe of animals.

In a closely-linked viewpoint, some authors consider that humans have been able to communicate with the animals they have been associated with. Without reciprocal benefits, domestication would not be possible. Such an exchange of services, information and sensibilities brings with it obligations: wherein lies the significance of the expression “domestic contract”. It is as if the “life story” of domestic animals has been woven together from all sorts of different beliefs, repeated across generations into the mixed societal form now in existence. These relationships are reciprocal (the obligations are not one-way), but non-egalitarian (very non-egalitarian, since they include the possibility of putting animals to death). Such a contract results in the necessity of “taking care” of animals, which implies providing them with food, protecting them (against predators, parasites and disease) and taking charge of their reproduction, while at the same time ensuring them of a certain “well-being”. It also includes devising husbandry systems which assure every animal of a certain freedom of movement, the opportunity of exploring its environment, of expressing behaviour appropriate to its species and forming relationships with its own kind.

Beyond the potential divergences of these viewpoints, it is possible to find consensus on the reality of the moral issue of this question: that animal pain is thought to be have been aggravated by the intensification in husbandry practices and that there has been a rise in social concern regarding the condition of animals in our society. For the authors, animals have become a moral concern; therefore they should be protected by the norms ascribed to any human actions and decisions which may impact upon them.

Expertise scientifique collective "Douleurs animales" 15 The role of animal protection organizations Movements of thought and action concerning animals were formed and developed later in France than in the Germanic or Anglo-Saxon world. The French Society for the Protection of Animals (SPA) was founded in 1845, followed soon after by the adoption of the Grammont Law which the newly-created SPA put into practice.

Since the nineteenth century, similar associations have multiplied, one feature remaining constant over their increasing diversity: their social composition. Their members are mainly from the middle and upper social classes, wealthy, educated and urbanized. This probably explains their belated interest in farm animals, with the exception of horses. The issue of farm animals was not brought into focus until 1961 with the creation of the Oeuvre d’assistance aux bêtes d’abattoir, (OABA) or the Society for the Protection of Farm Animals, at the same time as the first large post-war reorganization of slaughterhouses and meat production systems.

A panoramic view of the organisations shows a great diversity in their concept of the animal condition and the relationships they look for between humans and animals. Very broadly, it is however possible to differentiate, as is

often the case in activist movements, two types of position, between which lie numerous real variants:

– moderates, reformists, who want mainly to provide animals with decent living conditions or at least to improve the conditions in which they are kept;

– radicals, who call themselves “abolitionists”, abolition referring to any type of animal exploitation and therefore, as a safeguard, suppression of all relationships with them in order to return them to a supposedly happy natural state, free from human slavery.

While the objectives, operating methods and the spheres of influence of the many organizations vary greatly, they

nonetheless share common ground in organizing their activities on three levels:

– activities which aim to improve the fate of animals in a very concrete way, by protecting them, taking them in, treating them etc;

– activities to raise public awareness, through traditional methods of activism (information campaigns, circulating pamphlets, petitions, demonstrations, etc.), or through education (some organizations are authorized to visit schools);

– finally, through pressure groups, most often by lobbying national or European public authorities and by professional and contact networks but sometimes also through violence against economic concerns (particularly pet shops, laboratories, and fur producers or sellers), indeed even – and this has happened in Great Britain and in the United States – against human targets, in line with the logic of terrorist movements.

1.3.3 Taking animal pain into account in the law A comment of a lexical nature should be made as a preamble: it can be observed in fact that the legal vocabulary used for describing different states of pain is very diverse – “well-being” and “suffering”, “fear”, “anxiety” “ability to suffer and to remember”, “behavioural needs”. It is not possible from this diversity to conclude whether they translate an awareness of animal complexity and of a form of mental suffering or whether they simply reflect the usual uncertainties on this issue.

The way animal pain is taken into consideration by the law is not easily comparable with the way human pain is taken into account. In fact, whereas compensation and the fight against human pain are fundaments of central and time-honoured branches of law, such as criminal and civil liability law, it is only in recently-adopted laws in the health field that any explicit mention is made of the necessity of taking responsibility for pain in human beings.

Recently, as the concept of health has widened to incorporate physical and psychological dimensions, an increased will to treat human pain specifically has been observed, including in the medical and hospital contexts.

This new dimension in the law can be linked either with the lowering of the threshold of tolerance for suffering and the end of life, or the end of Christian glorification of suffering, or with the emergence of new ways to fight pain.

As for taking animal pain into account in law, it can be traced back to the first laws on animal protection - in France with the adoption of criminal laws to curb cruelty to animals, in Europe with the publication of directives setting minimum standards for activities involving animals.

16 Expertise scientifique collective "Douleurs animales" In French law, the spread of a new attitude of caring for animals was embodied in the evolution of regulations for animal protection. Starting with the Grammont Law, it became more clearly established in 1959 with the decree making cruelty punishable in the private as well as the public domain. Animal protection laws/regulations then followed on rapidly, increasing the possible penalties, granting power to animal protection societies and widening the range of offences (maltreatment, acts of cruelty or serious abuse, voluntary or involuntary life-threatening attacks, etc). What is fundamentally implicit in these legal provisions is the recognition of the animal’s capacity to feel. Another explanation could be animals’ dependence and vulnerability vis-a-vis humans. When they are no longer labelled as dependent or vulnerable, animals become the subject for other solutions (nuisance animals, dangerous dogs etc.).

Based on the law of 10 July 1976, French law states that “any animal being a sentient being shall be placed by its owner in conditions compatible with the biological needs of its species” (article L.214-1 of the Rural Code). There is consensus on the importance of this law: animal feelings are placed at the heart of animal protection legislation.

However there is still controversy regarding the implications of this wording. Does it mean recognition of the specificity of the animal amongst legal things (a category differentiating them from “people”)? Does it demonstrate the existence of a third legal category in addition to the traditional dichotomy between people and things? Or could it demonstrate that animals are no longer legal property or things but legal subjects, limiting the owner’s freedoms and providing animal protection societies with the ability to take action against certain breaches of the law?

This recognition of animals as sentient beings has not however, as the law stands, closed the remit and terminated the rights of ownership over animals. Contrary to what might be commonly imagined, the law does not seem to see a contradiction in the references to “being” and the application of the rules of “having”. The law of 1976 makes reference to the owner of the animal. In this sense, it appears difficult, therefore, not to describe animals as property when they are able to be appropriated or are owned. The description of property remains unchanged in French law and can be traced back to Roman law. It justifies in principle the definition of the animal as a legal object, (as opposed to a legal subject) or a legal thing (as opposed to a legal person). It does not dispute the quality of “being able to feel”; legal objects (or things) are not limited to inert objects but include anything that does not qualify as a subject (or person).

In European law, the issue of animals’ legal status has not been expressed in the same terms as in French law.

The jurisdiction of the European Communities and then the European Union being limited, animals are defined according to those limitations. In the Treaty of Rome (1957) animals are defined as agricultural products, within the framework of the common market and free movement of goods and people (the fields of agriculture, transport, internal market and research falling under community jurisdiction). This definition remains unchanged, but it has not prevented the community legislator from adopting laws/regulations so as to ensure the minimum protection for animals on the farm, while being transported and during slaughter or when used for experimental purposes. The animals concerned are primarily those which are likely to enter and be transported within the domestic market, essentially farm livestock.

The protection of livestock in Europe European and community laws (the Council of Europe and European Communities and then the European Union) play a key role in the evolution of rules related to animal protection. However, French law already had criminal rules of law in place protecting animals before the first European directive was adopted. Within their jurisdiction, the European Communities, which became the European Community and then the European Union, basically intervened to ensure a minimal harmonization by the different member states on the subject of animal protection in agricultural, trading or experimental contexts. What should be noted is that the European directives set out higher demands for animal protection regarding certain activities, which therefore lead to greater consideration of animal pain. On the other hand, they do not resolve the question of the legal status of the animal and do not prescribe criminal penalties against those responsible for animal suffering.

Hence, the European Community adopted a series of directives concerning animal protection: stunning animals before slaughter (1974, repealed in 1995), protection of laying hens on the farm (1986, replaced in 1999) veal calves and pigs on the farm (1991, modifications in 1997 and 2001), protection of animals during transport (1990, modified several times and replaced by a regulation in 2004). In 1998, a directive concerning animal protection on Expertise scientifique collective "Douleurs animales" 17 farms set out a general framework for their protection. This fixed the rules on the housing of animals, on their care and husbandry methods (prevention of injuries and suffering, protection of animals reared outside) and is the basis for the whole range of community regulatory formalities applicable to all livestock.

This community legislation fixes the minimum general norms for farm animal protection according to the “five freedoms” stated above.

In 1997 a protocol on the protection and welfare of animals, annexed to the Treaty of Amsterdam was proposed.

It asserts that when formulating and implementing community policy in the areas of agriculture, transport, the domestic market and research, the European Community and the member states will take the requirements of animal welfare fully into account, while at the same time respecting legislative or administrative provisions and the common practices of the member states. This concerns in particular, religious rites, cultural traditions and regional heritage. However in 2001 and 2008 the European Community’s Court of Justice refused to qualify “animal welfare” as a general principle of community law. Nevertheless, the reference to animal welfare appeared throughout the texts and documents of the community’s institutions.

The project for a Treaty establishing a Constitution for Europe (2004) gave animal protection a place by stating that “when they implement Union policy in the areas of agriculture, fisheries, transport, the domestic market, technological research and development, the Union and the member states will take animal welfare fully into account recognizing them as sentient beings, at the same time respecting the legislative or administrative provisions and the common practices of the member states. This concerns in particular, religious rites, cultural traditions and regional heritage”. This wording, which is very close to the one in the protocol annexed to the Treaty of Amsterdam, was not retained as the Constitution was rejected by referendum in some countries.

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